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BREAKING NEWS

USCIS Proposes Rule to Welcome International Entrepreneurs

USCIS, August 26 ,2016 —U.S. Citizenship and Immigration Services (USCIS) is proposing a new rule, which would allow certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so that they may start or scale their businesses here in the United States.
Read the advance version of the notice of proposed rulemaking: International Entrepreneur Rule. Once the notice of proposed rulemaking is published in the Federal Register, the public will have 45 days from the date of publication to comment. To submit comments, follow the instructions in the notice.

“America’s economy has long benefitted from the contributions of immigrant entrepreneurs, from Main Street to Silicon Valley,” said Director León Rodríguez. “This proposed rule, when finalized, will help our economy grow by expanding immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment and generating revenue in the U.S.”

The proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation. Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;

Whose startup was formed in the United States within the past three years; and

Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:

Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;

Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or

Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entity in the United States. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation.

The notice of proposed rulemaking in the Federal Register invites public comment for 45 days, after which USCIS will address the comments received. The proposed rule does not take effect with the publication of the notice of proposed rulemaking. It will take effect on the date indicated in the final rule when a final rule is published in the Federal Register.

Have been granted H-1B status in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

During this teleconference, USCIS will present this regulatory update and answer stakeholder questions.

To join the session by phone

On the day of the session, please use the information below to join the teleconference. We recommend that you call in 10 to 15 minutes before the start time.

Executive Action on Immigration

A Guide to the Immigration Accountability Executive Action

“On November 20 and 21, 2014, President Obama announced his “immigration accountability executive action,” which includes a series of measures that are first steps towards common-sense reforms to an outdated immigration system. The series of executive actions presented by the administration range from new temporary immigration protections for many unauthorized parents of U.S. citizens and lawful permanent residents to highly technical regulatory proposals to fix outdated visa provisions. The series of changes, updates, and temporary measures relies on the expansion of successfully implemented programs, enhanced efforts to coordinate immigration enforcement and benefit policies across agencies, and attempts to use immigration as a tool of economic and social change. At the same time, the policies reflect the limits of executive authority, in many cases offering temporary respites until Congress definitively acts to reform the law. This guide from the American Immigration Council puts the issues in context, explaining what we know about the executive actions thus far, what the President’s legal authority is for these actions, and some of the history and background that preceded the announcement.” – AIC, Dec. 2014.

H-1B Visa Cap Reached

USCIS announced that it has received a sufficient number of H-1B petitions to reach the statutory cap for FY2015 for both the general category and the advanced degree exemption category, and will close the filing period after today. A random selection “lottery” will occur at a later date.

The Affordable Care Act and Immigration

The Patient Protection and Affordable Care Act (ACA), and the Social Security Act (SSA) require that individuals seeking coverage under a qualified health plan offered on a Health Insurance Marketplace or through an insurance affordability program (i.e. Medicaid etc.) provide information regarding their immigration status and certain information about their household members to determine eligibility for such coverage.

However, US Immigration and Customs Enforcement (ICE) does not use information about such individuals regarding health coverage as the basis for pursuing a civil immigration enforcement action against such individuals or members of their household.

US Adds Chile to Visa Waiver Program

Effective May 1, 2014, the country of Chile joins 37 other countries who are part of the US’ Visa Waiver program. Chilean passport holders with both an approved Electronic System for Travel Authorization (ESTA) and an e-passport will be able to visit the United States without nonimmigrant visitor visas. Chilean nationals will no longer have to apply for a B1/B2 visa.

Chile is one of the most-preferred counties in US immigration. Not only is Chile now the first Latin American country to qualify for the Visa Waiver program, it is only one of five countries who may avoid the onerous H-1B cap by filing a Trade Visa.

Deportation Victories

The Christian Science Monitor reports that the US government has been losing more case each year since 2009 and that nearly half of those fighting deportations are winning their cases.

Nearly half of immigrants facing deportation from the US are now winning their cases before an immigration judge, their highest success rate in more than 20 years, according to a new analysis of court data published Thursday… Since the start of the 2014 budget year in October, immigration judges ruled in favor of immigrants in about half of the 42,816 cases heard, TRAC reported. In 2013 the government won about 52 percent of cases. Immigrants in California, New York and Oregon have been most successful recently, while judges in Georgia, Louisiana and Utah have sided more often with the government, according to TRAC.

Purpose
This field guidance addresses the adjudication of Form I-601A, Application for Provisional Unlawful Presence Waiver in cases involving applicants with criminal history.

Scope
This field guidance applies to and binds all USCIS employees.

Authority
8 CFR 212.7(e)

Background
On March 4, 2013, we began a new provisional unlawful presence waiver program for certain relatives of U.S. citizens whose only ground of inadmissibility is unlawful presence in the United States under section 212(a)(9)(B)(i)(I) and (II) of the Immigration and Nationality Act (INA). See 78 FR 536-01 (January 3, 2013). The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens (spouses, children, or parents) who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all eligibility requirements outlined in 8 CFR 212.7(e) and warrant a favorable exercise of discretion.

There are several circumstances that may render an individual ineligible for a provisional unlawful presence waiver. For example, individuals with final orders of exclusion, deportation, or removal; individuals who are currently in removal proceedings that are not administratively closed at the time of filing; and individuals who have a pending application with USCIS for lawful permanent resident status are not eligible to apply for the provisional unlawful presence waiver. Individuals for whom there is a reason to believe that they may be subject to grounds of inadmissibility other than unlawful presence at the time of the immigrant visa interview with a Department of State (DOS) consular officer also are ineligible for the provisional unlawful presence waiver. See 8 CFR 212.7(e) (2013).

If a USCIS officer determines, based on the record, that there is a reason to believe that the applicant may be subject to a ground of inadmissibility other than unlawful presence at the time of his or her immigrant visa interview with a DOS consular officer, USCIS will deny the request for a provisional unlawful presence waiver. See 8 CFR 212.7(e)(4)(i) (2013).

In some cases, USCIS has denied a Form I-601A if an applicant has any criminal history. In these cases, if the record contains evidence that an applicant was charged with an offense or convicted of any crime (other than minor traffic citations such as parking violations, red light/stop sign violations, expired license or registration, or similar offenses), regardless of the sentence imposed or whether1the offense is a crime involving moral turpitude (CIMT), USCIS has denied the Form I-601A.

We have examined whether USCIS officers should find a reason to believe that an applicant may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) at the time of the immigrant visa interview if it appears that the applicant’s criminal offense falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) or it appears that the applicant’s criminal offense is not a crime involving moral turpitude (CIMT) under INA section 212(a)(2)(A)(i)(I). After further consideration, USCIS issues this field guidance.

Field Guidance
USCIS officers should review all evidence in the record, including any evidence submitted by the applicant or the attorney of record. If, based on all evidence in the record, it appears that the applicant’s criminal offense: (1) falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) at the time of the I-601A adjudication, or (2) is not a CIMT under INA section 212(a)(2)(A)(i)(I) that would render the applicant inadmissible, then USCIS officers should not find a reason to believe that the individual may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) at the time of the immigrant visa interview solely on account of that criminal offense. The USCIS officer should continue with the adjudication to determine whether the applicant meets the other requirements for the provisional unlawful presence waiver, including whether the applicant warrants a favorable exercise of discretion.

Use
This field guidance is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.

Contact Information
Questions or suggestions regarding this field guidance should be addressed through appropriate directorate channels to the Field Operations Directorate.

Pending DACA Cases

The American Immigration Lawyers Association (“AILA”), is conducting a survey of long pending DACA cases, some pending over one year, and many thousands pending longer that 8 months. The survey has discovered some common elements in long pending cases:

The requestor had previously been in removal proceedings or was in removal proceedings at the time of the DACA request;

The requestor had another petition or an application for other relief pending;

The requestor departed the United States for a considerable period of time either during or prior to the continuous residence period; or

The requestor provided a small amount of evidence to support either continuous residence during the relevant period or physical presence on June 15, 2012.

As AILA notes, if you have a long-pending DACA case, check to see whether it may fall into one of the above categories. While not always true, these factors may lead to longer processing times. These findings are preliminary, and may not reflect USCIS policy decisions or adjudication trends. USCIS is NOT a model of efficiency, and many of these long pending cases are at its Nebraska Service Center. Reach out to your attorney to see if an individual inquiry on your case is warranted.

Holiday Travel Suggestions

As many of our clients will be traveling abroad over the holiday season, we provide this brief travel memo to summarize the basic requirements for international travel. Please note that DHS and DOS policy often changes with little or no prior notice so we encourage you to check with your attorney at Pollack, Pollack, Isaac & DeCicco prior to your travel.

Basic Documents Required for Travel (and re-entry to the U.S.):

Passport valid for at least six months beyond the date of intended departure from the U.S.;

Valid U.S. Visa;

Original Form I-797, Notice of Approval (for Nonimmigrant Petition based cases);

U.S. Customs and Border Protection (CBP) has automated Form I-94 at air and sea ports of entry. The paper form is no longer provided and a CBP admission stamp is issued in the passport. The I-94 (record of admission) should be printed as soon as possible after admission to the U.S. from www.cbp.gov/I94. See here for additional information.

Applying For a Nonimmigrant Visa at a U.S. Consular Post:

Nonimmigrant (NIV) appointments at many consular posts worldwide are backlogged during the holiday season;

Most applicants between ages 14 years and 79 years must have an in-person consular interview;

Consider Third Country National (TCN) processing at a U.S. consular post in Canada or Mexico;

Feel free to contact any of our attorneys to discuss TCN visa processing in Canada or Mexico as he travels frequently to assist clients with their NIV applications at the border posts. TCN processing at border posts is a complex and highly specialized field of immigration law. Applicants should be aware of the significant risks, including potential delays for security clearances, denials and most important, the inability to return directly to the U.S. if rejected. The advice of an experienced attorney is highly recommended to research post policy, thoroughly review the applicant’s immigration history and status, properly prepare the visa application forms and supporting documents, and be available to assist the applicant with the visa process. In addition, any individual with a criminal arrest and/or conviction or immigration status issues should consult with a WIL professional prior to departing the U.S.

Everyone at PPID wish you the safest of travels and a joy-filled holiday season!

IRS warns of pervasive telephone scam

The Internal Revenue Service today warned consumers about a sophisticated phone scam targeting taxpayers, including recent immigrants, throughout the country. Victims are told they owe money to the IRS and it must be paid promptly through a pre-loaded debit card or wire transfer. If the victim refuses to cooperate, they are then threatened with arrest, deportation or suspension of a business or driver’s license. In many cases, the caller becomes hostile and insulting.

“This scam has hit taxpayers in nearly every state in the country. We want to educate taxpayers so they can help protect themselves. Rest assured, we do not and will not ask for credit card numbers over the phone, nor request a pre-paid debit card or wire transfer,” says IRS Acting Commissioner Danny Werfel. “If someone unexpectedly calls claiming to be from the IRS and threatens police arrest, deportation or license revocation if you don’t pay immediately, that is a sign that it really isn’t the IRS calling.” Werfel noted that the first IRS contact with taxpayers on a tax issue is likely to occur via U.S. Postal mail.

What Does the Shutdown Mean for Immigration?

In this AILA Quicktake video, AILA Associate Director of Liaison and Information Betsy Lawrence explains the ramifications of the government shutdown on immigration agencies. You can also find the most recent information from the CIS Ombudsman, DOL, CBP, DHS, DOS, EOIR, ICE, USCIS, and SSA on AILA’s government shutdown page.

Harmful I-9 Hiring Practices Employers Should Avoid

Immigration-related employment practices have become more and more complex and it is now more likely than ever that a seemingly harmless hiring practice may lead to a charge against an employer for discrimination on the basis of national origin, citizenship, or immigration status, including discriminatory Form I-9 and E-Verify practices. The opportunity to get “caught” is enhanced because the Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”) and the National Labor Relations Board (“NLRB”) have recently “teamed up” to combine their resources to address claims against employers, announced here. This is the latest in over 50 such partnership agreements that the OSC has with federal, state and local agencies, including USCIS, EEOC, and the State of California Department of Fair Employment & Housing.

DOMA and Same Sex Marriage

After the Supreme Court struck down a core provision of the Defense of Marriage Act last month, some legal scholars and many Americans assumed that the ruling automatically extended federal immigration benefits to the same-sex foreign spouses of United States citizens.

The Obama administration also adopted this view. On July 1, Janet Napolitano, the secretary of homeland security, said she had directed Citizenship and Immigration Services, which is part of her department, to “review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

However, in our view, this executive action is not consistent with the law.

In the DOMA case, United States v. Windsor, a five-member majority of the court found that Section 3 of the law, which denied federal recognition of same-sex marriages, violated the due-process clause of the Constitution. But the ruling also explicitly affirmed Congress’s power to enact laws that bear on marital rights and privileges. It noted, for example, that a marriage “entered into for the purpose of procuring an alien’s admission as an immigrant” to the United States is not valid for obtaining lawful status, even if it is valid under state law.

The House’s Immigration Dilemma

The first thing you need to know about the House Republican view of immigration reform, the fate of which now rests with John Boehner’s restive caucus, is that there is no single House Republican view of immigration reform.

Instead, as the Democrats have come to march in lock step on the issue — dropping the old union-populist skepticism of low-wage immigration in favor of liberal cosmopolitanism and Hispanic interest-group pandering — many of the country’s varying, conflicting opinions have ended up crowded inside the Republican Party’s tent.

So there are Republicans who would happily vote for the Senate bill as is, no questions asked, and Republicans who might never vote for a bill that contains the words “comprehensive” and “reform,” let alone “immigration.”

There are law-and-order Republicans who care only about border security and E-Verify, pro-business Republicans seeking new guest-worker programs and religious-conservative Republicans for whom amnesty is a humanitarian cause.

There are libertarian Republicans who believe “the more, the better” is the only answer on immigration policy and communitarian Republicans who worry about the impact on wages, assimilation and cultural cohesion.

There are calculating, self-interested Republicans who think immigration reform will save their party from extinction, and calculating, self-interested Republicans who worry that it will create millions of new Democratic voters.

This diversity of views makes it difficult to game out exactly how the House might proceed on the issue. But right now, there seem to be two directions that Republicans could ultimately take.

The first is a kind of lowest-common-denominator approach suggested by the majority leader, Eric Cantor. It would advance two ideas that command broad Republican support — more spending on border security and more visas for high-skilled immigrants — alongside an idea many Republican representatives opposed in the past but seem to be warming to right now: a new version of the Dream Act, which would offer citizenship to illegal immigrants who arrived as children.

This combination would probably poll well, minimize intra-Republican divisions and focus on the policy area, high-skilled immigration, where there is the strongest consensus about the benefits to the nation. It would also vindicate the Republican Party’s (often notional) commitment to offering incremental alternatives to bloated liberal bills.

But such incrementalism would punt on the question of how to handle the bulk of the existing illegal-immigrant population, and thus wouldn’t be anything like the game changer sought by many Republican strategists worried about the Hispanic vote. And politically, it would have been much more clever months ago, before the Senate bill raised expectations for how sweeping a reform should be. In the shadow of Rubio-Schumer, a House that passed incremental bills and then refused to negotiate its way to something bigger might well receive the same kind of “do nothing” coverage as a House that did nothing at all.

Hence the (quiet, for now) appeal of the second option, mentioned last week by The Washington Post’s Ezra Klein and The Huffington Post’s Jon Ward, in which the House would find a way to go along with a version of amnesty that either didn’t include the promise of citizenship or made the path so long and arduous that few immigrants would take it.

To its supporters, this combination would deliver illegal immigrants the security and stability that pro-legalization activists are seeking, without running afoul of either the principled Republican desire to avoid rewarding people who have broken America’s laws, or the more cynical Republican desire not to have the newly legalized showing up to vote for Democrats.

But it, too, would come at a cost. We’re living through an era of stratification, a period of mass unemployment, an economic “recovery” in which working-class wages aren’t actually recovering. This is a strange climate in which to create — and then augment, via guest-worker programs — a permanent tier of explicitly second-class, mostly low-skilled residents, deliberately curtail their political leverage and then ask low-wage native workers to compete with them for jobs.

And it’s a particularly strange climate for a Republican Party struggling to shed its “party of the rich” label to identify with such a policy, and give up one of the few issues where it has some credibility with working-class voters.

The party faces risks whatever it does: killing comprehensive reform might further alienate Hispanics, as the conventional wisdom has it, but then again going along with Charles Schumer and a flood of corporate money might exacerbate the kind of “who’s looking out for me?” disaffection that kept many conservative-tilting, economically strapped voters from the polls in 2012.

But a clever-sounding deal that legalizes immigrants as laborers but not as citizens risks disaster on both fronts: rejection by Hispanics as insufficient and ultimately insulting, and rejection by many of America’s tired, poor, huddled workers as another example of the political class’s indifference to their fate.

USCIS Notice: Extension of TPS for Syria

Through this notice, the Department of Homeland Security (DHS) announces that the Secretary of Homeland Security is extending the existing designation of Syria for Temporary Protected Status (TPS) for 18 months, from October 1, 2013 through March 31, 2015, and redesignating Syria for TPS for 18 months, effective October 1, 2013 through March 31, 2015.

Obama’s immigration plan: a more direct path to citizenship than the Senate’s

The United States Senate’s immigration reform plan would provide countless illegal immigrants in the country an opportunity to apply for citizenship. These immigrants, which are estimated at 11 million, would not be allowed to apply for green cards or citizenship until the U.S. border with Mexico has been deemed secure. There are concerns that the border security provision could lead to a state of legal limbo for many undocumented workers, but Senate Republicans have said they will not vote for a deal on immigration that does not include border security.

House GOP open to residency for undocumented immigrants

House Republicans have staked out what they say is a middle-ground option in the debate over immigration. Their plan would include an option for legal residency for 11 million undocumented workers living in the United States, but would not provide a path to citizenship.

Republicans have also said they would be interested in breaking up the immigration bill into smaller pieces that would address individual issues, such as highly skilled workers and a farm workers’ program. Democrats have criticized the idea, saying that if skilled worker and employment verification bills are passed, it is not clear if anything else would be done. Democrats in the House have said they favor a more comprehensive approach.

Arizona bill asks hospitals to check citizenship status

A new bill offered by Arizona State Representative Steve Smith (R-Maricopa) would require hospitals to request that patients show proof that they are in the country legally and to contact immigration officials if they are not or if they refuse. The bill would also require that hospitals in Arizona keep track of how many undocumented immigrants they treat each year.

Smith said the goal of the bill is to determine how many undocumented immigrants receive medical care in Arizona hospitals each year, but critics say it amounts to harassment of immigrants or anyone who looks like one, and could keep genuinely ill people from going to the hospital.

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